Saturday, September 14, 2002

Lawrence Lessig responds to my thoughts on his concerns with "opaque creativity."

I agree that the Supreme Court's thinking is at the heart of this issue, as you quoted, that the "ultimate goal of the patent system is to bring new designs and technologies into the public domain through disclosure." But this system is one which is designed not to compel the inventor to make a disclosure, but rather to provide an incentive for such disclosure.

I like your description of the patent, the "here's how to copy my invention" document. A fundamental problem for patent applicants, though, is that the patent document can also offer a blueprint for "here's how to engineer around my invention." Furthermore, the expenses involved in patent application, argument to achieve patent issuance, and litigation to protect an issued patent ultimately takes patent protection out of reach for most citizens.

But citizens have another option, that of keeping an invention a "trade secret." Thus the system works that I have a choice between receiving some special protection or no special protection. If I want the state to grant me a "limited time" monopoly, I may apply for a patent, risking the possibility that a competitor may engineer around my solution, but receiving some ability under the law to prevent infringement in my specific methodology or design. In exchange I ultimately agree that after some "limited time" the specific methodolgy or design receives no further protection and becomes the property of all citizens. This does not necessarily prohibit me from continuing to build a business around the invention as I may still effectively compete on efficiency or distribution or quality or brand recognition. Or, of course, on further innovation. Alternatively, if I do not want this limited time monopoly (or I cannot afford it), I am still free to do business but without any special protection for my specific methodology or design.

In your proposal (if I understand it correctly), you would provide the software developer with copyright protection for the object code (or the opaque version) of his product only if he also agreed to place the source code (or the transparent version) of his product into escrow with the State. This escrow might be secret, preventing any competitor from viewing the precise implementation of the invention, but would ultimately be released by the State at the termination of the "limited time" monopoly.

Thus software (and other copyrighted "opaque" inventions?) would only be treated as property, and accorded any protection from theft, if the transparent version of the invention was held by the State and released at some time in the future. Thus the inventor of opaque IP would be compelled to divulge the "secret sauce" of his invention and would never be accorded the same choice between some value offered by the state (a "limited time" monopoly in the case of patents) vs. the ability to do business without such a monopoly (a "trade secret" with the possibility that the secret sauce would be reverse engineered). Furthermore, as software is infinitely duplicable for nominal cost, the inventor would have all value in his invention stripped from him by the State at the end of the "limited time" of protection, as the State would become the distributor of his invention. The corollary with a physical product would be for the State to give everyone a free cotton gin when Eli Whitney's patent ran out.

It seems to me that for your proposal to work, the opaque version of the invention should still receive copyright protection, while the inventor would receive some additional incentive for disclosure of the transparent version. One suggestion as an example -- perhaps government funds could only be spent on software that had been submitted to the secret limited time escrow scheme. Thus, I could chose to keep my software secret, but would then not be able to sell to the government.

If opaque creativity does not receive the same protection as transparent creativity it seems to me that we will be creating an enormous problem in determining just what is an opaque creation, and what is a transparent one. The other example in my earlier note is an interesting one -- should the romance novels generated by an automatic novel writing software receive copyright protection if I do not submit my software to the escrow plan? What about special effects in movies -- should Pixar be required to escrow their animation software for Toy Story to recieve copyright protection? How about the musician that programs a sound into a synthesizer -- should the musician be compelled to escrow the specifics of this wave form in order to receive protection for the song?

I do not disagree with the idea of an extension to existing copyright and patent law which would create an incentive for inventors to disclose their means of production, and I see your argument that this is a logical extension of the State's objectives in promoting the "Progress of Science." However, I believe that such an extension should be done in a form which offers an incentive for participation and does not become a compulsion for the inventor.

No comments: